Judge Says Giving Up Your Password May Be A 5th Amendment Violation

from the protect-your-data dept

Courts have gone back and forth over the years concerning whether or not being forced to give up your password to reveal encrypted data is a violation of the Fifth Amendment. Now there's been yet another decision saying that someone cannot be forced to give up their password, because it likely violates their Fifth Amendment rights.

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with ‘reasonably particularity’—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

It's definitely a good thing to see courts getting this right. Being forced to give up your passwords and encryption is quite a slippery slope. It's good to see judges pushing back.

Reader Comments

Just to spell things out for...certain people before they run their mouth off...

The police had no solid evidence that the accused had owned the child porn. The hard drives may have been in his possession, but the police were unable to establish beforehand whether any child porn found on those drives was placed there by the defendant or by someone else. Basically, the only solid evidence (if there was any), at least in this case, was in the defendant's possession and obviously, as a man being accused of a crime, he didn't have to help those accusing him.

Re:

Yes, this is very important. The issue in this case is that the very act of producing a password would constitute solid evidence that the accused had access to the child porn. The police had no solid evidence of this, so compelling the accused to turn over a password would be compelled testimony against himself.

The police can still compel you to turn over a password if they know beyond reasonable doubt that you know it, and they know beyond reasonable doubt what they'll find when they use it. That hasn't changed in this ruling.

What would happen if the police found a file on your drive that they claimed was encrypted and then got a court order to get you to reveal the password, but instead you just stuck to your guns and said you have no idea what they are talking about?

UK

I just wonder if such a self-incrimination reason would also apply here in the UK? They after all have a law that says if you don't hand over your password when asked then they will just stick you in prison for a few years anyway!

Privacy = Prison.

Maybe there is better hope under the EU Human Rights Act but I have yet to check.

Re: Re:

If they have proof one has child porn, such as photos in the person's possession then they do not need anything from the hard drive. At any rate the 5th Amendment still stands and the police are still on a fishing expedition.

I hope the police are smart enough to use hash tags and not just the file name. One could rename a picture of a dog or cat to something sounding like child porn as bait.

Re: Search Warrant

Not quite, the warrant allows for gathering for later analysis of potential evidence. There is nothing stopping someone from trying to crack the encryption other than time. The argument can be made if the police have the hard drive they can try breaking the encryption and demanding the password is self-incrimination.

Re: UK

The 5th Amendment is a US idea to limit the ability of the police to go on fishing expeditions and to compel one to answer any questions. It was added in the Bill of Rights partly because of the American experience with British justice in the Colonial period was not to pretty.

considering how quickly judges usually are at making things that are part of your privacy an offence, it ;is good to see someone rule oe at least think the opposite. i wonder how long before the DoJ fight this?

Re: Re: UK

I have been checking and the UK has law against self-incrimination under the "right to remain silent" which means you can refuse to answer questions posed by the Police or in Court.

Be aware though that refusing to answer the Police and instead only revealing your defence in Court can be used against you if the Jury conclude that you used this delay to fabricate a story.

In this regrade the best thing to tell the Police is that on "legal advise" you refuse to answer any questions. If you wish to be more forthcoming then it is best to have the Police submit questions in written form where these questions and your reply can be parsed through your lawyer. Just keep in mind that answering some questions and not others can be used against you as if you did have something to hide. So in general a blank refusal to answer questions is best and I could name 10 good reasons to validate this concept.

This has been limited under law in some examples such as if you are arrested under Terrorism laws.

Keep in mind that the Police can lie including trying to trick you out of your rights.

The EU's Human Rights Act does not mention self-incrimination directly but separately the EU Court has found "the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6"

None of this addresses the fact that a UK law exists that directly says that if you refuse to hand over your passwords to the Police then they can stick you into prison for up to 5 years. Can this really violate the other?

The Government grew tired of encryption hindering Police investigations where they made this law thinking that the only people who would want to face a default prison term would be dangerous terrorists and pedophiles.

I will have to dig out that exact law but I am thinking though that this law is a "lie" that simply cannot he upheld when faced with international standards against self-incrimination. They are trying to compel you to talk and that is unlawful.

This I believe is why as far as I am aware no one has ever gone to prison for this. The Police would much prefer to fool people into submission with their scare law than to have it challenged in Court and struck down.

Re: Re: Re:

If CP was legal, we wouldn't have this problem...as far as CP goes, although I'm sure the government would concoct other excuses (the aforementioned software, music, or movies).
Whatever a person wants to look at, watch, or listen to in the privacy of his own home should be none of the government's business.

Re: Re:

> BUT must be done in a professional, methodical way

Unfortunately, just being accused of possessing child porn is more or less a social "game over". It's a shame that most people aren't technologically adept enough to understand that in this era of ubiquitous computing (and therefore, ubiquitous vulnerabilities), almost everyone could end up being (wrongly) accused. Personally, I'd back legislation that requires all investigations of such crimes to be "under seal", and which would severely limit the punishment for the crime if "somehow" this required secrecy was botched during the investigation (yes, I know that's not optimal, but I cannot think of any other way to motivate law enforcement properly).

Re: Re: Re: UK

there isn't actually a law, IIRC. the reason you have to turn over your passwords in the UK is because search warrants require the information to be turned over in an intelligible form. IOW, no encryption or obscure file formats.

And the reason no-one has been prosecuted for it is actaully simpler: if they can prove you know the password, they can make inferences about the content of the file. Ergo, people are charged with the original offense, not with failing to provide the password

not only that, but there are actually quite a few ways to get the passwords. (and, incidentally, using multiple partitions or OSes doesn't help you- they copy the entire physical disk to run their analysis on, so they WILL find what you're trying to hide.

problem- if there is no way to compel a password be turned over, then how do you avoid the situation where sufficiently strict encryption renders it impossible to prosecute a crime? Cryptanalysis might be good, but it can take ages, and there is no guarantee that you can break the encryption successfully- possible reasonable doubt that could see a criminal walk free.

in short, it may be better to design protections for those forced to give up their passwords (like, for example, excluding the password from being evidence of guilt) than banning a requirement to turn over passwords.

Re:

like, for example, excluding the password from being evidence of guilt

Huh? So they can see the evidence and not use it? Then why bother?

And honestly this falls under that stupidity of "if you haven't done anything wrong you have nothing to hide". I use encryption all the time and I've never done anything wrong but suppose someone falsely accuses me of possessing and distributing child porn. The burden is not on me to prove my innocence and I am not required to generate evidence against myself. The best the Govt can do is to try to break the "sufficiently strict encryption" I laid on my personal stuff which can be anything from only harmless stuff to me and my gf making out on camera.

There are other means of verifying accusations such as wiretapping (with judicial warrants) and even operations with officials under cover. Forcing a password out by any means is not an option.

Re:

> The hard drives may have been in his possession,
> but the police were unable to establish beforehand
> whether any child porn found on those drives was
> placed there by the defendant or by someone else.

How did they even know there was child porn on them if they were encrypted/password-protected?

Re: Re:

> The police can still compel you to turn over
> a password if they know beyond reasonable doubt
> that you know it, and they know beyond reasonable
> doubt what they'll find when they use it. That
> hasn't changed in this ruling.

I suspect you don't know what you're talking about. "Beyond a reasonable doubt" is a jury standard that has to be met by the prosecution at trial. It has nothing to do with the police and the standards by which they conduct their investigations.

Re: Re:

> Then you get slapped with 'contempt of court',
> which is basically the legal way to coerce you
> to cooperate, and can involve pretty much unlimited
> jail time until you agree to do what they want you to.

That only works when there's undeniable proof that the defendant *can* produce what the government is requesting.

Unless the government can prove that you have the password and are refusing to provide it-- that you haven't forgotten it, that you purposely never learned it, etc.-- they can't keep in you jail forever based on that.

The key concept behind these kinds of contempt rulings is that "the defendant has the keys to his own jail cell". In other words, he can let himself out at any time. All he has to do is cooperate. If the defendant actually *can't* let himself out because he doesn't have the information the government wants, then the contempt charge is invalid and if his lawyer can show that on appeal, the trial court's contempt order will be overturned.

Still and all, while you can theoretically be subject to indefinite incarceration for contempt, no jailing for contempt in America has ever gone beyond a couple of years, and that's at the extreme. So if I was a defendant and knew that I had stuff on my computer that would send me to the state pound-you-in-the-ass penitentiary for 10-15 years, I'd take two years in the county jail for contempt every time and leave the evidence encrypted where the government couldn't get to it.

Re: Re: UK

Re: Search Warrant

no becuse we have the right not to incriminate our self by giving them the info its like just saying it to the judges face i did this and you made me say this.... know he does not have to incriminate him self by doing that so a warrants.... would you want to hand over any ove your password to the government, but he's guilty because he wont open his computer so that means he's either a very priavate person or he gots some bad things on there! Hope this helped you out....